CYIL 2015

THE DEFINITION OF THE CRIME OF AGGRESSION…

to establish the jurisdiction of the Court over the other three core crimes under the

Rome Statute. On the other hand, in case of the crime of aggression, the link to one

single

non-

State Party is enough to prevent the exercise of the Court’s jurisdiction,

i.e.

the acts of aggression involving the nationals or the territory of a non-State Party (no

matter whether the non-State Party is the aggresor or the victim) are excluded from

the Court’s jurisdiction over the crime of aggression.

The question – one of the most contentious questions concerning the aggression

amendments – is whether the same regime applies also with regard to States Parties to

the Rome Statute which have not ratified or accepted the amendments on the crime of

aggression; in other words, the question is whether the second sentence of article 121(5)

of the Rome Statute (“In respect of a State Party which has not accepted the amendment,

the Court shall not exercise its jurisdiction regarding a crime covered by the

amendment when committed by that State Party’s nationals or on its territory.”)

should be interpreted as it stands “plain and clear”, in the same way as almost

identical wording of article 15bis(5), or whether the contextual interpretation of the

Rome Statute, including the aggression amendments, sets aside the second sentence

of article 121(5) and enables the Court to exercise its jurisdiction also over the crimes

of aggression in which the States Parties – which have not ratified or accepted the

aggression amendments – are involved. In yet other words, there is a divergence

between the so called “positive” and “negative” understanding or interpretation of

article 121(5), second sentence, and its relationship to newly adopted article 15bis

[namely article 15bis(4)].

5. The negative understanding of article 121(5), second sentence

Under the negative interpretation of article 121(5), second sentence, the Court

is excluded from exercising its jurisdiction over the crime of aggression whenever the

crime is committed by the nationals or on the territory of a State Party which has

not ratified or accepted the amendments on the crime of aggression.

Thus, under

this interpretation, for the Court to be able to exercise its jurisdiction, it is necessary

that all States Parties involved in the aggession – the aggressor State (States) as well as

the State (States) on whose territory (against whom) the crime (act) of agression was

committed – must have ratified or accepted the aggression amendments. This means

that the link to one single State Party which was involved in the aggression and has

not ratified or accepted the aggression amendments would be enough to prevent

the exercise of the Court’s jurisdiction over this crime. This interpetation would be

analogous to the above undisputed interpretation of article 15bis(5), the wording

of which is,

mutatis mutandis,

identical and which is concerned with the

non

-States

Stefan Barriga,

op. cit.

sub 1, p. 41.

See

e.g.

Marko Milanović, Aggression and Legality (Custom in Kampala), Journal of International

Criminal Justice, Vol. 10, Issue 1 (March 2012), p. 179.

A. Zimmermann,

op. cit.

sub 6, p. 217.